[2013] KEELRC 31 (KLR)
The court found that the Claimant had reached the normal retirement age of 60 in December 2010, as stipulated in the Staff Terms of Employment. The Claimant did not apply for retention beyond retirement age within the required five months before attaining 60 years. Despite continuing to work for an additional year...
Source-derived case information.
- Citation
- [2013] KEELRC 31 (KLR)
- Parties
- Claimant: John Maina Nyaga; Respondent: Charterhouse Bank Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1041 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit dismissed with costs to the respondent
- Judges
- AN Makau
- Legal Topics
- Retirement Age, Unfair Termination, Employment Contracts, Compensation for Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maina Nyaga
Claimant
Charterhouse Bank Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was wrongful or unfair.
- 2 Whether the Claimant was entitled to compensation for alleged wrongful dismissal.
- 3 Whether the Claimant was entitled to damages for trauma, depression, anxiety, stress, humiliation, frustration, and suffering.
Ratio Decidendi
The court found that the Claimant had reached the normal retirement age of 60 in December 2010, as stipulated in the Staff Terms of Employment. The Claimant did not apply for retention beyond retirement age within the required five months before attaining 60 years. Despite continuing to work for an additional year and one month, the Claimant's request for extension was made after he had already surpassed the retirement age. The court held that the termination was lawful and proper, as the employment contract did not guarantee renewal beyond the retirement age. Furthermore, the Claimant failed to provide evidence, such as a medical report, to substantiate his claim for general damages for...
Court Disposition
suit dismissed with costs to the respondent
Orders
- The suit is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
THE JUDICIARY
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 1041 OF 2012
JOHN MAINA NYAGA…..….……………………………………………………………………CLAIMANT
VERSUS
CHARTERHOUSE BANK LTD………………………………………………………………RESPONDENT
JUDGMENT
The Claimant seeks resolution of the alleged wrongful dismissal or unfair termination of his services from the Respondent. He seeks gross salary for 10 months of the contract amounting to 1,647,758/=, twelve months salary as compensation for wrongful unfair or unlawful dismissal, 1,977,000/= one month salary in lieu of notice, damages for trauma depression, anxiety, stress, humiliation, frustration and suffering occasioned by the Respondent. He also sought interest on the special damages and costs of the suit in addition to any other reliefs the Court may deem fit to grant.
The Respondent opposed the suit and averred that it was lawful to terminate the contract pursuant to clause 17 of the memorandum of agreement and neither the letter of the appointment nor the memorandum of agreement guaranteed future renewal of the employment contract. The retirement age of male employees was averred to be 60 years an age the Claimant attained in 2010. The Respondent thus prayed for the dismissal of the suit with costs.
The Claimant testified on 29th May 2013 and stated that he was employment by the Respondent from 1st April 2003 until his termination on 2nd February 2012. The contracts he had we annual and upon the takeover of the Respondent by the Central Bank of Kenya he continued to work for the Respondent under statutory management of the CBK. The Statutory Manager wrote a letter stating the Claimant’s last day of service was 31st January 2012.
The Respondent called Jimmy Muiwa who testified that the Claimant was the Manager Human Resource at the Respondent and ought to have notified the Respondent when he achieved the retirement age of 60.
The Claimant during cross-examination by Mr. Ogalo-Omondi admitted he turned 60 in December 2010. The terms of employment of the Claimant and other employees of the Respondent were contained in the Staff Terms of Employment. Clause 7 headed Termination date had a sub clause headed Retirement. Under Retirement clause 2 on Normal Retirement Age was that the normal retirement age for all male employee is 60 years and 55 years for female employees. The clause on Retention Beyond Retirement Age made provision that an employee could be retained beyond 60 years or 55 years for male and female employees upon application to be made 5 months before normal retirement age.
The Claimant wrote in 2012 seeking an extension to serve as employee till the end of 2012. He was aged 61 at the time. That clearly was not 5 months before attainment of the age of 60 years. He continued to enjoy a salary for 1 year, 1 month beyond his retirement age. His claim is therefore without basis. The Claimant’s case was not proved on a balance of probabilities. If he suffered trauma, depression, anxiety, stress, humiliation, frustration and suffering, he did not adduce any medical report or tender evidence of such. The claim on General damages would therefore not lie. The termination was lawful and proper. The suit is dismissed with costs to the Respondent.
It is so ordered.
Dated and Delivered at Nairobi this 10th day of December 2013.
Nzioki wa Makau
JUDGE